Disaffection case against 'Hindu' editor: We are like that only!

IN Media Freedom | 01/10/2013
How does a news story about the private visit of a high-ranking police officer to a religious leader become a threat to media freedom,
Only the Andhra Pradesh police and its gazetted officers association have the astounding capacity to decode ‘disaffection’ and ‘disapprobation of the police against a lawfully elected government in a simple news report about a police boss visiting a local religious baba. And the journalist has to face a criminal case based on a complaint by the police officers and immediately investigated by police!
In the guise of an investigation, the police enthusiastically barged into the office and residence of S Nagesh Kumar, resident editor of ‘The Hindu’ in Hyderabad. His aged mother and other members of his family were stunned to see half a dozen police officers frequently visiting their residence. The editor was forced to take anticipatory bail after an FIR was lodged against him for spreading disaffection and for defamation.
Undoubtedly, this is an assault on the independence of the press, apart from the continuing apprehension of further injuries to the family. But what was the provocation for all this?
On September 13, 2013, the newspaper’s local edition reported the visit of V Dinesh Reddy, the Director General of Police, to Habib Mustafa Idrus Baba, a local baba. It’s headline said such a visit ‘raises eyebrows’, though the body didn’t contain anything to that effect. Nothing that could warrant a prosecution, save perhaps the positioning of the news item as a banner box just below the masthead of the newspaper.
A case was lodged against the resident editor under the Indian Penal Code (IPC)  for forgery and under the Police (Incitement to Disaffection) Act, 1922, for spreading disaffection.
How can a private visit cause disaffection?
How can a report of a DGP’s visit to a local baba cause disaffection in either the DGP or any member of the police force against a lawfully elected Government? The news report did not contain any word that is capable of or having tendency of creating disaffection among the police force in AP against Government as disclosed by FIR.
While the headline said such visits raise eyebrows, the body of the item does not suggest any such thing. The report refers to earlier visits of Governor ND Tiwari and Railway Minister Jaffer Sharif to this religious leader. It also says that Baba receives people with personal problems on Thursdays only and that DGP visited with some problems. Then it gives the background of the legal disputes around the DGP, the disproportionate assets case against him and his imminent retirement (he retired on September 30, 2013).
The complaining association should have considered the fact that one of the senior officers of the state’s police force had initiated most of these cases against his colleague, not any media reporter.
On another note, there are allegations for the last month about the manner in which the police and government officials were sponsoring the agitation in Seemandhra against the division of the state. The DGP himself chose to address the media to rebut the allegation of police bias or inaction against agitators. It is surprise that the President of AP Police Gazetted Officers Association, who is complainant in the case against the Hindu editor, has no complaint about this. 
The police recall a forgotten law, Police (Incitement to Disaffection) Act 1922, to accuse the Hindu Resident Editor along with Section 505 of IPC. Reminiscent of the British administration and the colonial mindset of the AP administration, the state police invoked this obsolete and draconian legislation. While the IPC punishes inciting ‘disaffection’ among police with three year imprisonment, the 1922 law punishes creating disapprobation among police with six months of imprisonment or fine of Rs 200.
This British law in Section 3 says: Whoever intentionally causes or attempts to cause or does any Act which he knows is likely to caukse, disaffection towards the Government established by law in India amongst the members of a police force, or induces or attempts to induce, or does any act which he knows is likely to induce, any member of a police force to withholds his services or to commit a breach of discipline shall be punished with imprisonment which may extend to six months, or with fine which may exstend to two hundred ruppees or with both.
In a Constitution of democratic country there is no space for this legislation.  Interpreting such a news report as inciting disaffection and disapprobation is a straight contravention of freedom of speech and expression under Article 19(1)(a) of Constitution of India. This ‘six section’ legislation is very dangerous to personal freedom as it does not define what disaffection or disapprobation is, and thus the officers or their association can arbitrarily use against a newspaper. Even the Britishers might have not imagined that the AP Police Gazetted Officers Association would invoke this section against a simple news report without any imputations or even innuendos.
This law is certainly unconstitutional and journalists should seek its nullification by a court of law, if not its repeal.
Safeguard ignored
There is one safeguard in this legislation. Section 5 says that, if the crime is committed in Presidency towns, the district magistrate or the police commissioner has to sanction the prosecution of such case. From the FIR, it appears that district magistrate was not consulted before filing this case. If consulted, he would have probably advised against it.
The Police Officers Association also invoked Section 505 of IPC, which talks about publishing any statement, rumour or report with intent to cause any officer to mutiny, cause alarm to the public, to incite offence against state, which leads to punishment with imprisonment up to three years or with fine or with both. Nagesh Kumar’s news item does not state anything, or propagate any rumour and causing any officer to mutiny is just out of question.
Even if on assumes, for a moment, that the complainant is right, the police officers should have read the explanation appended to Section 3 of that Act, which cannot be separated. It says: Explanation of disapprobation of the measures of the Government with a view to obtain their alteration by lawful means or of dispprobation of administrative or other action of the Government do not constitute an offence under this section unless they cause or are made for the purpose of causing or are likely to cause disaffection.
Even this alien law facilitates criticism and democratic means of altering measures of the government. The Hindu did not criticise any measure including the visit to Baba. The report emphasizes about forty-minute-regulation of traffic and barring the media persons from access to area. It neither can cause disaffection nor injure reputation of police force including its top boss. In fact, police lost its image to a great extent by bringing in such draconian law, which was abandoned by non-use, against a credible newspaper and its responsible journalist.
Strangely the complainant himself recognises the event reported as a scandal but says that scandal is ‘insignificant’. Even the reporter did not call it a scandal, except explaining that Baba hears personal problems on Thursdays.  Then question is why the top banner space in the Hindu was used to report this insignificant scandal. Even if this was improper, it was not a crime under penal provisions invoked.
The complaining officer claims that he ‘came to know that this is false and without bases and also confirms that also ‘came to know that it was done with malafide intention to harm the reputation of Office of DGP in particular and entire police force in general’.  The basis of this ‘came to know’ was not explained. It is fortunate that he did not invoke Section 500 IPC of criminal defamation against the news report.
The complaint refers to an old news item published in The Hindu on 8th March 2013, ‘DGP Draws Flack at Cabinet Meet” and then refers to publication of denial next day. Another component of complaint is the report of the arrest of two television reporters. The complaint did not deny the arrests but disputes the reported reason. The Hindu reported that they were arrested for airing news about DGP, but the complainant says that they were arrested for enraging the feelings of one sect of Muslims.  The sections referred and news items quoted do not match in any way. According to established norms, in a democratic rule of law societies, an office of DGP or Police Force in general cannot have or claim reputation and its loss because of criticism. Only an officer can complain in his individual capacity without intervention of Government to claim remedy for loss of reputation, if any.
The complaint cannot stand judicial scrutiny because of its serious self-contradictions. It refers to reputation, but does not invoke any legal provision about it. It refers to news items that have nothing to do with Police (Incitement to Disaffection) Act 1922 or Section 505. It alleges ‘disaffection’ which prima facie not reflected in any of the items referred.
In this case, the complainant, as well as the investigating agency is the police, which raises doubts about justice to a journalist. The way groups of police officers raided a reporter’s residence and caused panic in his family members is a gross violation of investigating norms prescribed under Criminal Procedure Code and thus breach of right to life under Article 21 of Constitution. 
(Madabhushi Sridhar is Professor and Coordinator, Center for Media Law & Public Policy, NALSAR, University of Law, Hyderabad)


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